§ 1.7 Void Contracts

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The meaning that is most commonly intended to be conveyed by the word ''void'' is total absence of legal effect. It may sometimes be confused with the word ''voidable''; but the error involved is nearly certain to be an error as to the legal operation of facts and not one of mere terminology. One who says that an agreement or a promise is ''void'' usually supposes that it has no legal operation whatever, being in many cases quite unaware that a number of important legal relations have been created.

In the term ''void contract,'' there is a self-contradiction.n1 This is because the term ''contract'' is always defined so as to include some element of enforceability. There is no such weakness, however, in the term ''void agreement.'' This is because the term ''agreement'' is commonly used to mean nothing more than the expressions of the parties, their acts of offer and acceptance, without any reference whatever to any resulting legal relation. The same is true of the term ''void promise,'' since the word promise is used to denote a mere promissory expression without any implication that it either is or is not legally enforceable or otherwise operative.

Many promises are made that are not contracts and are not capable of becoming enforceable by any act of acceptance or by any action in reliance. A promise that creates no legal relation of any kind may properly be called a void promise. Likewise, there are many expressions of mutual agreement that make no change in the legal relations of the parties; they may properly be said to be void agreements. Most bargains that are described as ''illegal'' are not wholly void of legal effect, but an agreement by two parties for the doing of acts that both know to be a felony would have no legal operation and be ''void,'' although the acts themselves, when performed, would have very important effects indeed. If the expressions of two parties purporting to be acts of offer and acceptance are materially different in meaning and the facts are not such as to create an estoppel against either one, there is neither a contract nor an agreement. Not only is it inaccurate to say that the contract is void; it is equally inaccurate to say that there is a void agreement. In such a case the individual expressions of the two parties, the offer and the acceptance, are not entirely void of legal effect. Each one of them may be a legally operative offer creating in the other party a power of acceptance. The transaction is merely one of offer and counter-offer.

In cases where the transaction of the parties is in fact a mutual agreement, but is legally void, and also in cases where there is no contract for the reason that there are no mutual expressions of assent, the parties may nevertheless follow the transaction by action that is itself legally operative. A party may make a conveyance of land, even though there was no contract creating a duty to convey. The agreement may have been void, but the conveyance is not. A party may render service to another, both of them erroneously thinking that an agreement has been reached and a contract has been made. In such a case the rendition of the service is a legally operative act, even though there was no contract and there was a misunderstanding instead of an agreement.

Illustrations of agreements that are wholly void of legal effect are not very numerous; but several classes of them can be found. The cases in which an illegal bargain is actually void and those in which it is enforceable by one or both of the parties will be considered in the chapters dealing with illegality. Again, courts often declare that a contract within the statute of frauds that is not evidenced by the required writing is void. Indeed, the statutes of a few states expressly declare such an agreement to be ''void.'' Nevertheless, as will appear in the chapters dealing with the statute of frauds, there is no case in which such an agreement is totally without legal operation. Even if a statute expressly declares an agreement to be illegal or void, justice requires and the courts have continually decided that the effect of such a statute upon a particular case must depend upon the circumstances of that case. The words of the statute will be interpreted in the light of the purpose of the statute, with due regard to the result that will be reached by the interpretation. One result of this is that agreements will often be found to have some legal operation even though the statute may have used the word ''void.''

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For related research and practice materials, see the following legal topics:

Real Property LawPurchase & SaleContracts of SaleEnforceabilityMistakeContracts LawFormationOffersGeneral OverviewContracts LawDefensesIllegal BargainsContracts LawStatutes of FraudsGeneral Overview

FOOTNOTES:

(n1)Footnote 1. Accord, Restatement (Second) of Contracts § 7, comment 1 (1981). On the varying uses of the term ''void,'' see Abraham J. Levin, The Varying Meaning and Legal Effect of the Word ''Void,'' 32 Mich.L.Rev. 1088 (1933).